No. 01-08-00738-CR
Opinion issued December 17, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas, Trial Court Cause No. 1096647.
Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
TERRY JENNINGS, Justice.
A jury found appellant, Dennis Antoine Andrus, guilty of the offense of capital murder of a child under the age of six years old and assessed his punishment at confinement for life. In three issues, appellant contends that the evidence is factually insufficient to support his conviction and his trial counsel provided ineffective assistance of counsel. We affirm.
Background
Ashley Burnett, appellant's wife, testified that on December 4, 2006, she and appellant, a hemophiliac, lived in a two-bedroom, one-bath apartment with their two children, Aja, who was two and one-half years old, and the complainant, who was sixteen months old. That morning, Ashley, who worked as a certified nurse's aide on the 2 p.m. to 10 p.m. shift at an assisted living facility, fed the children breakfast and spent about two hours playing with them in the living room. The complainant was playing with her sister as she normally would. At noon, as was her routine, Ashley put the children down for their nap on the living room floor in front of the television, which was turned on. Ashley then began getting ready for work. Appellant, who was in the bed in the master bedroom, got out of bed just before Ashley left for work at around 1:40 p.m. When Ashley left, she noted that the children were still asleep on the living room floor and appellant began vacuuming the apartment. Although the facts are somewhat unclear as to the series of events that occurred after Ashley left for work, it is undisputed that appellant was alone with Aja and the complainant during that time. Appellant testified that shortly after he began vacuuming, the children awoke. The complainant stood up from the floor, and appellant noticed that her diaper was sagging. Appellant brought her to the couch, removed her diaper, and saw that the complainant had both urinated and defecated in her diaper. Appellant used the outside of her diaper to wipe the complainant but could not find another diaper in the living room. He left her on the couch and told her to stay there. While he was out of the living room, appellant heard no sound but that from the television. Appellant went to the master bedroom in search of a fresh diaper. Not finding one there, he went to the children's room. After about three or four minutes, appellant returned with the fresh diaper, whereupon he saw the complainant lying face down on the floor. Appellant walked passed the complainant to the couch and called her to him. After the complainant did not respond, he then walked over to her and picked her up. Appellant noted that the complainant was limp and unresponsive and one of her eyes was looking askew. Appellant immediately made a telephone call to Ashley and told her that the complainant was unresponsive, but he communicated no reason for the complainant's condition. Ashley immediately returned home. In the meantime, appellant tried to revive the complainant by kissing her, touching her, and putting a wet washcloth on her face. Ashley returned about twenty minutes after appellant had called her on the telephone. Ashley did not notice any obvious injuries on the complainant. She also tried to revive the complainant by kissing her. When the complainant did not respond, appellant, Ashley, Aja, and the complainant proceeded to the LBJ Hospital Emergency Room. Appellant drove and let Ashley, who was carrying the complainant, out at the front door of the hospital. Before parking the car, appellant went to get his cousin, who lived about five minutes away, to help watch Aja. LBJ Security Officer Michael Living testified that at LBJ Hospital, Security Officer Damien Dickerson assisted Ashley in bringing the complainant into the emergency room. After the complainant was taken to emergency room personnel, Dickerson and Living went to see their supervisor, Sergeant Althea Covington, to notify her to contact law enforcement authorities because the child had been injured. Living then went to his post at the parking lot booth. Subsequently another security officer, dispatched by Sergeant Covington, came and told Living to be on the lookout for a white car with a male driver and a child passenger and to bring them to the emergency room. After appellant, his cousin, and Aja arrived in the car, they followed Living into the hospital. Living noted that appellant did not have "as much concern as [Living] would have [had]" and that appellant was not crying as he walked into the hospital. Sergeant Covington testified that she contacted an on site Child Protective Services representative to interview appellant and Ashley. Covington noted that appellant's demeanor was not emotional while he was being interviewed, until the representative's questions became accusatory, and that Ashley's demeanor was "pretty calm," which, in her opinion, was inappropriate. Shortly thereafter, Houston Police Department ("HPD") Patrol Officer C. Gallian arrived to investigate the incident. Officer Gallian testified that he was dispatched to the LBJ Hospital Emergency Room in response to a call about a child suffering from "swelling in her brain for an unknown reason." Once there, Covington immediately directed him to Ashley and appellant. Appellant told Gallian that he "thought [the complainant's symptoms were due to] a diaper rash," that "[the complainant] didn't have balance," that "appellant changed her diaper," and that then "[the complainant] fell to her back and . . . her eyes rolled back . . . one eye rolled back and . . . the other one was still open." Gallian noted that appellant did not tell him that the complainant's diaper had been soiled or that appellant had placed her on a couch. Gallian explained that appellant told him that the complainant had acted unusually from "the second she awoke from her nap" and that appellant "was with her when she basically just fell out on him." HPD Sergeant R. Parnell, assigned to the Child Abuse Unit, testified that she further investigated the report that "the complainant was suffering from shaken baby syndrome and had severe head trauma." Ashley and appellant met Parnell at a police station for an interview, which was recorded on video tape. Appellant told Parnell that after the complainant awoke from her nap, he noticed that she had a soiled diaper. He took off the soiled diaper, left the complainant on the couch, went to get a fresh diaper from the master bedroom, and returned to find the complainant face down on the floor and unresponsive. Appellant restated that Ashley had already left for work when the complainant became non-responsive. Appellant also stated that the complainant "wasn't active from the time she woke up" and "[the complainant was] not acting like [herself]." After the interview, Parnell was informed by physicians at Ben Taub Hospital, where the complainant had been transferred, that she had "lower right side fractures on the back of her skull and a subdural bleed." Dr. Katherine King-Casas, the complainant's treating physician at Ben Taub Hospital, testified that the complainant had suffered from a broken left arm, a large skull fracture and contusions on the right side of her head, a smaller skull fracture on the left side of her head, and significant bleeding into her brain. Dr. King-Casas admitted that the contusions would not necessarily have been visible to anyone until the complainant's head was shaved because the complainant had a full head of hair. She explained that the bleeding created extremely high pressure within the complainant's skull, which could cause further widening of any fractures and of the spaces between the sutures on the complainant's skull. Dr. King-Casas indicated that the complainant was placed on a ventilator and had a catheter inserted into her skull to reduce the pressure. She explained that, at that point, because of the pressure, the complainant's "chances of survival were very low." Dr. King-Casas examined the complainant's eyes and saw multiple retinal hemorrhages. She explained that the hemorrhages would not result from "one unidirectional fall [but] from shearing back and forth movements." Dr. King-Casas opined that all of complainant's injuries were "inconsistent" with an accidental fall. The complainant died on December 8, 2008. HPD Homicide Detective S. Straughter testified that after the complainant died, he, along with HPD Homicide Detective J.C. Padilla and Sergeant Parnell, went to appellant's apartment to view the scene and interview appellant. The officers recorded a scene video, having appellant describe what was being recorded and explain what had happened. Straughter noted that appellant seemed calm and Ashley was "upset and very disturbed." On the video, appellant repeated what he had told Parnell earlier and added that he also "picked [the complainant] up and . . . took her into the room and . . . laid her across the bed" and that he "got a cold towel and laid it across her face" to try to get her to respond. Straughter noted the height of the couch from the seat to the floor to be fourteen and one-half inches and that the floor was carpeted in the living room. He conceded that the height from the arm of the couch to the floor was probably between eighteen and nineteen inches. Assistant Harris County Medical Examiner Dr. Sara Doyle testified about the complainant's injuries and the cause of her death using twenty-seven autopsy photographs to illustrate her testimony. Dr. Doyle explained that the complainant had "four areas of bruising on the right side of [her] head" that became visible after her head had been shaved. These contusions were "due to some type of impact" that could be the result of up to "four separate strikes." She also noted that the complainant had a broken left arm. When Dr. Doyle peeled back the complainant's scalp to examine her skull, she saw a skull fracture on the right side — a "linear break" through the parietal bone — that was in line with the externally visible bruising on that side of the head. The complainant's skull sutures had been separated in a "diastatic fracture," which had been caused by the force of a blow that fractured the right parietal bone. However, some of the separation of the fractures and the sutures could have resulted from the swelling and increased pressure in the brain, rather than from the blow itself. Dr. Doyle additionally noted that the complainant had a "large right angle-shaped fracture . . . involving her left parietal bone" that extended into a suture, and a separate fracture on the back of her head. She observed that the right angle-shaped fracture was so severe that it split the left parietal bone into two pieces. The number of fractures indicated to Dr. Doyle that "there were two or more separate impacts" because those "two fractures can't happen separately with one blow." She explained that the right-angled fracture was beveled, which usually occurs when "that portion of the head is up against something while the other portion of the head is struck." Dr. Doyle opined that the injures were consistent with the complainant's head being up against the bed frame in the master bedroom and being struck repeatedly from the other side. Regarding the complainant's eyes, Dr. Doyle noted "numerous hemorrhages all the way from the back to the front of [the complainant's eyes] as well as folds in the retina." She explained that these hemorrhages "[were] associated with nonaccidental inflicted head trauma" and were not consistent with injuries secondary to a serious fall. Dr. Doyle opined that the eye hemorrhages were not likely to have resulted from the hemorrhaging into the brain that caused the excess pressure in the skull. Dr. Doyle further testified that she was "unsure exactly how much force would be needed to make a person with severe hemophilia to bruise" and that an "adult person that inflicts trauma on a child with a body part . . . may get bruising" but not definitely, which may or may not require medical attention. Dr. Doyle determined that the cause of the complainant's death was "blunt force head trauma" in which "the head was most likely on a supported surface on the left and being struck on the right." She opined that the complainant's injuries were inconsistent with a fall from the couch onto an object with a ninety degree angle because such a fall "would not create the two separate fractures on the back side of the head as well as the corner-shaped fracture on the top of the head." Dr. Jennifer Love, the Forensic Anthropology Director for the Harris County Medical Examiner's office, testified that she examined the complainant's broken left arm. She determined that the ulna was broken by an axial force that drove the bone up towards the elbow, causing the bone to balloon outward and bend forward. Although Dr. Love indicated that such an injury was consistent with a person catching herself with her hand while falling, the complainant's broken ulna was inconsistent with a fall from a couch onto a carpeted floor. However, the break was consistent with a person putting out her hand to stop herself from being thrown, for example, against a wall. Dr. Love determined that the fracture to the ulna occurred around the same time as the complainant's skull fractures. She also agreed with Dr. Doyle that the complainant's skull fractures were consistent with her having been hit with nonaccidental blunt force on the right side of her skull while the left side of her skull was up against something with a right angle. Dr. Emanuel Escobar testified that appellant was a moderate hemophiliac who had been treated five times at the Houston Hemophilia Center since 2000. He explained that, due to appellant's level of hemophilia, it was unlikely that appellant would be susceptible to spontaneous bleeds, and, if appellant punched someone, his necessity for medical treatment would depend on the severity of the trauma. Dr. Escobar could not say whether or not appellant would have needed medical treatment for his hand if appellant had punched a child. Nelson Wayne May, Jr., appellant's brother, testified that appellant was "sweet" and "caring" with his children and had a reputation for honesty. Ashley testified that appellant was helpful around the house and with the children. Appellant testified that he routinely helped with the children and the housekeeping. He further testified that any inconsistencies in his recounting of the events that day were because he panicked and was being asked different questions by different people for different purposes. He further testified that he was not a violent person, and when he had gotten into fights, he had needed an infusion directly thereafter. Appellant denied that he had gotten into several fights while held in the Harris county Jail even though he had written his cousins to tell them about being in fights at the jail. He then admitted that he had been a member of the gang the "Bloods." Appellant conceded that the complainant was fine before Ashley left for work, that he was the only adult with the complainant after Ashley left, and that he was the only adult nearby when the complainant became unresponsive. Sufficiency of the Evidence In his first and second issues, appellant argues that the evidence is factually "insufficient to support appellant's conviction for capital murder" because "there is not sufficient evidence that he committed the acts causing the death of the complainant who was under the age of six (6) years" and "there is not sufficient evidence the appellant possessed the requisite intent to cause the death of the complainant." In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The jury is free to accept some testimony over that of other witnesses, including that of the defendant, and to disregard any inconsistencies. McKinny v. State, 76 S .W.3d 463, 468-69 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Although we should always be "mindful" that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called `thirteenth juror.'" Watson, 204 S.W.3d at 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417. "Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time its injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child dies." Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.-El Paso 2000, pet. ref'd); see Bryant v. State, 909 S.W.2d 579, 583 (Tex. App.-Tyler 1995, no pet.); Butts v. State, 835 S.W.2d 147, 150-51 (Tex. App.-Corpus Christi 1992, pet ref'd). The requisite intent for capital murder of a child under the age of six is not the specific intent to kill, but whether the accused "acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Rojas v. State, 171 S.W.3d 442, 446-447 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). A jury may infer intent to kill from the nature of the injury inflicted. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994). A defendant's intent to kill may also be inferred from his words, acts, and conduct. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). In circumstances where the defendant is the only one with access to the child at the time the child sustains injuries, the jury may consider inconsistencies in the defendant's versions of events and the medical evidence in determining guilt. Kemmerer v. State, 113 S.W.3d 513, 515-516 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). In Kemmerer, the complainant child was walking, standing, sitting, playing, and crying before being left in the sole care of the defendant, after which she received a "severe, closed-head injury" that caused her death. Id. at 515. The medical evidence showed that the complainant's injuries were caused by "a forceful blow or by severe shaking, rather than by a mere fall from a sofa to a carpeted floor, as some of [the defendant's] statements had suggested." Id. The defendant's version of the events changed over time. Id. at 516, n. 3. She originally stated that the child was "fine" when she first took custody of her. Id. Later she stated that the child was "fussy" when initially left in her care. Id. Another time she stated that the child was "silently lying" on her mother's shoulder with "blank open eyes" when she was dropped off. Id. In upholding the defendant's conviction, the court of appeals noted that the jury was free to consider the defendant's conflicting statements and the medical evidence in finding the defendant guilty. Id. at 515. In support of his factual sufficiency challenge, appellant emphasizes that he "denied the commission of any act which might have caused his daughter's death as well as any intent for that result." Appellant relies on evidence that he was an involved father with the complainant; he had a good relationship with his family; there was no evidence of prior abuse; when he realized the complainant was unresponsive, he tried to awaken her and then immediately called his wife; his failure to immediately call in emergency assistance was due to his panic; the complainant's injuries were not immediately obvious because of her full head of hair; and any inconsistencies in his statements were because the statements were taken for different reasons by different persons who asked different questions. Here, appellant's story remained basically the same: the complainant was napping and appeared physically fine before his wife left the complainant alone with appellant to go to work; appellant began vacuuming, which awoke the complainant whereupon appellant noticed that she had soiled her diaper; appellant removed the diaper and set the complainant on the couch; he left the room to get a fresh diaper; and when he returned, the complainant was face down and non-responsive on the floor. Unlike the defendant in Kemmerer, appellant did not give significantly varying stories about the complainant's physical state before the injuries occurred or for how the injuries occurred. He maintained that the complainant was fine before his wife had left, that he did not inflict the injuries suffered by the complainant, and that he did not know how the injuries were inflicted. However, the record reveals that appellant did change his version of the events from one interview to another. For example, appellant first told Gallian that the complainant was on her back, and he later told Straughter that she had been on her stomach. He told Gallian that the complainant had a diaper rash, but he then told Straughter she only had a soiled diaper. Appellant testified that he called Ashley ten minutes after she left for work, whereas Ashley testified that she was just pulling into the parking lot of her workplace, which was twenty or thirty minutes away, when she received appellant's phone call. Appellant told Covington that the complainant fell off the couch, but he later told Straughter that she was on the couch when he left but on the floor when he returned. Most important, however, the medical evidence established that the complainant was subjected to severe blunt force trauma to the right side of her head while the left side of her head was resting against a hard right-angled surface. The State presented evidence that at least two blows were necessary to cause the injuries to the right rear, back, and left sides of her skull. The treating physician, the medical examiner, and the forensic anthropologist all testified that the complainant's injuries were "inconsistent" with an accidental fall onto a carpeted floor from a couch. The treating physician and the medical examiner agreed that the hemorrhaging in the complainant's eyes also could not have been caused by an accidental fall. The fracture on the left side of the complainant's skull occurred as a result of great force that split the left parietal bone into two pieces. Although the complainant's left arm was broken by a force that would be consistent with the complainant using her arm to stop herself from falling, the medical examiner and the forensic anthropologist explained that such an injury would not occur from a fall from a couch onto a carpeted floor. The critical undisputed facts are that the complainant acted normally before her mother left for work and her injuries occurred while she was in the sole care of appellant. Viewing the evidence in a neutral light, a reasonable trier of fact could have found beyond a reasonable doubt from the nature and severity of the complainant's skull fractures and broken left arm and from the fact that the complainant was acting normally before being left in the sole custody of appellant, that appellant intentionally or knowingly inflicted the injuries to the complainant's skull, which caused her death. See Garcia, 16 S.W.3d at 405. Thus, we conclude that the verdict is not "clearly wrong and manifestly unjust" and the proof of guilt is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first and second issues. Ineffective Assistance of Counsel
In his third issue, appellant argues that his trial counsel rendered ineffective assistance because he failed to contest the admissibility of gruesome autopsy photographs. In order to prove an ineffective assistance of counsel claim, appellant must show that his trial counsel's performance fell below an objective standard of reasonableness and, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Allegations of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002). When the record is silent, we may not speculate to find trial counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). In the absence of evidence of counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006); Gamble, 916 S.W.2d at 93. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Appellant contends that trial counsel failed to object to the admission of gruesome autopsy photographs, specifically State's Exhibits 37 and 38. He argues that his trial counsel should have objected because "[b]oth depict the same injuries with Exhibit 38 providing greater detail than 37" and "Exhibit 38 is further compromised by the gruesome coloration surrounding the left eye." He also asserts that "[t]he prosecuting attorney exacerbated the inflammatory and prejudicial nature of State's Exhibit 37 by twice referring to it as `graphic.'" Exhibit 37 shows the skull with skin pulled back revealing the sutures and the fracture on the right side of complainant's skull. Exhibit 38 shows the skull with the skin pulled back revealing the sutures and the right angle-shaped fracture on the left side of the complainant's skull. In order to be admissible, photographs must be relevant to the solution of a disputed fact issue. Lanham v. State, 474 S.W.2d 197, 199 (Tex. Crim. App. 1972). Here, appellant maintained that he did not know how the complainant was injured. Thus, the nature of the complainant's injuries and her cause of death were at issue. Exhibit 37 is not duplicative of Exhibit 38, as appellant asserts, because each exhibit shows a different side of the complainant's skull. Dr. Doyle used Exhibit 37 to explain that the parietal bone on the right side of the complainant's skull had a "linear fracture" that was caused by "some type of impact or hit to the skull" and the sutures at the back of the skull were abnormally separated in a diastatic fracture "consistent with a continuation of the force of the [linear fracture] causing [the suture] to open up." Dr. Doyle used Exhibit 38 to explain that the parietal bone on the left side of the complainant's skull had a "large right angle-shaped fracture" that extended into a suture. While the photographs are gruesome, they are no more gruesome than would be expected with injuries of the nature suffered by the complainant. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). Further, if verbal testimony is relevant, photographs of the same are also relevant. See Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Dr. Doyle used the photographs to explain the nature and extent of the complainant's skull fractures and the cause of death and to support her opinion that neither fracture could have been sustained by an accidental fall. Because Dr. Doyle's verbal testimony was relevant, the photographs were also relevant. An objection to these photographs would likely have been futile. See id. Trial counsel is not ineffective for failing to undertake futile actions. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). The record indicates that trial counsel "had an opportunity to review [the photographs] and [trial counsel had] no objection." Because there is no evidence in the record that affirmatively demonstrates that trial counsel's failure to object to the photographs was deficient, we must heed the strong presumption that trial counsel provided reasonable professional assistance. We overrule appellant's third issue. Conclusion
We affirm the judgment of the trial court.